Pets: Who Gets the Dog?

Pet-custody cases are on the rise, but the law hasn’t caught up with the emotions involved.

Divorce lawyers advise couples to agree on pet custody in a settlement rather than taking the issue to court. Photograph by Stephen Welstead/Corbis

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When Robert and his wife of 13 years separated in September, one of the issues they faced was who would get custody of their dogs, Kira and Zoey. The couple, who don’t have children, hadn’t discussed what would happen if the dogs were to outlive the marriage.

Both people were attached to the dogs, says Robert—who asked to have his last name withheld because the divorce is not yet final—but he knew the dogs meant more to his wife. “I didn’t want to do anything that would really hurt her, and I knew taking the dogs would,” he says.

Through their lawyers, the couple worked out an agreement in which Robert would help pay for the dogs’ care and get custody one week out of every six.

Losing the dogs was hard, Robert says. “Divorce is a time when everything gets thrown up in the air—your primary relationship, where you live, your friends, emotions. And to take your dogs away is just another facet of it.”

Kira and Zoey’s “parents” aren’t alone. In a study by the American Academy of Matrimonial Lawyers, nearly a quarter of divorce attorneys said they had seen arise in pet-custody cases.

Most couples come to an agreement out of court, says Deborah Luxenberg, a Bethesda lawyer. In 33 years of practice, she has seen only one pet case go before a judge. That’s because in the eyes of the law in Maryland, Virginia, and DC, pets are property.

“Pets are treated like furniture if you go to trial,” Luxenberg says. When a couple can’t agree on dividing the furniture, “then it’s sold and the proceeds divided,” she says. “People have to try to work it out.”

When negotiating custody, lawyers encourage clients to think of the best interest of the pet. Often the animal will stay with the person who gets the marital home. Other factors to consider are how much time each person can spend with the pet and who is more attached.

If children are involved, lawyers agree that keeping the pets with the kids is best. “If there’s any time in the world a child should have their pet, it’s when their family’s separating,” Lewis says.

Morriah Horani, a lawyer with Bethesda’s Pasternak & Fidis, says sharing custody of a pet can be tricky. Many splitting couples would rather cut their ties completely than stay in touch just to arrange visits for Fido.

How can pet owners avoid a future fight over custody? Talk about it, Lewis says: “ ‘If you and I aren’t together anymore, what would we want to see done with the pet?’ Don’t talk about it when you’re fighting. You have to resolve these things at the beginning.”

If you would want to keep the pet no matter what, start a paper trail, Horani says. Put the pet’s registration in your name and pay the vet bills. If you sign a prenuptial agreement, include the pet.

Those already embroiled in a pet-custody fight should take a step back, Luxenberg says: “People need to realistically think about what’s best for the pet.”

This article first appeared in the February 2009 issue of The Washingtonian.